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WILLIAM BURGE v. STATE OF MISSISSIPPI

JUNE 05, 1985

WILLIAM BURGE
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, C.J.; DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This appeal follows the conviction of William L. Burge on the charge of manslaughter by culpable negligence under Miss. Code Ann. 97-3-47 (Supp.1984) for which he has been sentenced to twelve years imprisonment.

 On appeal, Burge contends that the lower court erred in: (1) overruling his request for a peremptory instruction and subsequent motion for judgment of acquittal notwithstanding the verdict of the jury, (2) refusing to grant his motion for a new trial made on grounds the jury verdict was against the weight of the evidence, and (3) allowing the State to question Burge regarding his failure to flee when assaulted by the deceased.

 The heart of this appeal is the all too familiar Weathersby *fn1 wolf cry. Although his version of the homicide was the only one the jury had before it, Burge overlooks that his story suggests reasonable inferences consistent with guilt. We affirm.

 II.

 On September 22, 1983, Juanita Calloway was fatally wounded by William L. Burge, the Defendant below and the Appellant here. Burge had driven Calloway in his car to his home in order to get a long-sleeved shirt. The two argued over the fact that Calloway was apparently sleeping with one of her sons. Calloway displayed a knife. Burge, who carried a gun to shoot the snakes which lived in the walls of his house, pulled his gun, pointed it at Calloway and cocked it. The two continued to argue, and with the knife still drawn and the gun still pointed, Burge attempted to push Calloway back into his car. When Burge pushed Calloway, her hand hit the gun causing it to discharge and strike her. Burge immediately placed Calloway in his car and attempted to rush her to the hospital, but his car began to run out of gas so he stopped by a tire store and had an ambulance called. Calloway expired momentarily.

 When the police arrived, Burge read and signed his waiver of Miranda *fn2 rights and gave an oral statement basically identical to his later testimony at trial.

 Burge was formally charged with the manslaughter of Juanita Calloway by culpable negligence in an indictment returned by the Grand Jury of Neshoba County, Mississippi and filed on February 7, 1984. The case was called for trial a week later, on Tuesday, February 14, 1984. At the trial the sole description of the events of September 22, 1983, was that provided by Burge, both in his own testimony and in the testimony of Sheriff J. A. Phillips, Jr. regarding Burge's oral statement made shortly after the homicide. What Burge told Sheriff Phillips, as related by Sheriff Phillips at trial, did not vary materially from Burge's trial testimony.

 At trial, the prosecution extensively cross-examined Burge regarding why he did not flee, but rather pulled a gun, when confronted by Calloway with a knife.

 At the conclusion of all of the evidence, Burge requested a peremptory instruction of "not guilty" which was denied. Thereafter, the case was submitted to the jury accompanied by liberal instructions encompassing the defense theories of the case, including instructions regarding justifiable homicide by reason of self-defense as well as excusable homicide by reason of accident or misfortune. With respect to Burge's plea of self-defense, the jury was correctly instructed that the State was required to "prove beyond a reasonable doubt that William Burge did not act in self-defense" before a guilty verdict could be returned.

 The jury was further instructed that Burge was under no duty to flee when Calloway first appeared with a knife and that he had the right to stand his ground and employ reasonable force in defending against any threat she posed. Beyond that, the jury was given a Weathersby instruction to the effect that Burge was the only eye witness to the killing and that his version of what happened, if reasonable, had to be accepted as true unless substantially contradicted in material particulars by the physical facts or by facts of common knowledge.

 Having received these instructions, the jury retired to consider its verdict and shortly thereafter found Burge guilty as charged. The Circuit Court thereupon sentenced Burge to the custody of the Mississippi Department of Corrections for a term of twelve years.

 Burge filed timely a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial which on February 21, 1984, was ...


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